Massachusetts Alcoholic Beverage Licensing Blog

The Berkshire Eagle reports on a possible new Jae's restaurant for Lenox. Jae's owners have faced some legal trouble of late, as discussed in the article.

The UPI reports that a New Jersey man has hired a lawyer for the potential fight over the planned name of his new bar -- Buck Foston's.

Larry Blatterfein of New Brunswick, a lifelong New York Yankees fan, said the name is "all in fun" and designed to "engender an emotional response," the Boston Herald reported this week.

However, Blatterfein says that Mayor Jim Cahill, an avowed Red Sox fan, is attempting to prevent the name by withholding a liquor license.

Blatterfein said he has hired a constitutional lawyer for a potential First Amendment court battle.

Mass. Lawyers Weekly reports that a Boston nightclub could not be indemnified for a patron's injuries because it failed to present evidence that the man showed visible signs of intoxication earlier in the evening at a Chinese restaurant, a Superior Court judge has ruled.

The plaintiff nightclub, Felt Enterprises, argued that because defendant Chau Chow II did not monitor how much alcohol it served the patron, the Chinatown restaurant was liable under the "mode of operations" test announced by the Supreme Judicial Court in its landmark 2007 Sheehan v. Roche Bros. decision.

Even though the plaintiff in Sheehan could not establish how long a piece of food had been on the floor before it caused a slip and fall, SJC Chief Justice Roderick L. Ireland held, in an issue of first impression, that the store owner who created the foreseeably dangerous condition could still be held responsible.

But Judge Bonnie H. MacLeod-Mancuso refused to apply the SJC's test to the nightclub's case, granting summary judgment in favor of the Asian eatery.

"The Plaintiff has not presented any authority extending the 'mode of operations' doctrine from the self-service premises liability context to the dram shop liability context," she wrote. "Considering the weight of authority against the Plaintiff's position, the 'mode of operations' approach does not apply to this case, and the Plaintiff cannot show that the Defendant had notice [the patron] was intoxicated while it was serving him alcoholic beverages."

The Boston Globe reports that Massachusetts' top federal judge, Mark Wolf, has said that Boston City Council's authority to oust Chuck Turner from office last month following the councilor's conviction for accepting a bribe is legally uncertain, and Turner's lawsuit to regain his seat might be turned over to the state courts.

Wolf ordered lawyers representing Turner and the city to submit their recommendations as to where the case should be decided by noon Friday.

Wolf is treading carefully because he said the question of whether the council has the legal authority to remove an incumbent has never before been decided in Massachusetts.

"This case involves issues that are fundamental to our federal system of government and, indeed, our democracy,'' Wolf wrote in his decision. "Respect for the role and responsibilities of the state generally make it most appropriate for state courts, rather than federal courts, to decide uncertain issues of state law, particularly if they relate to state or local elections.''

A timely decision is crucial because special elections to fill Turner's seat have been scheduled for Feb. 15 and March 15.

Turner, convicted in October for taking a $1,000 bribe from a Roxbury businessman seeking a liquor license from the city, is scheduled to be sentenced Jan. 25. If he is sent to prison, he would automatically be removed from office.

But the City Council -- citing new rules adopted following Turner's indictment that permit them to remove a councilor for "unbecoming conduct'' by a two-thirds vote -- had expelled him in December.

"It appears that the council's authority to remove Turner before he is sentenced is uncertain,'' Wolf wrote.

Last Monday, Turner and some of his constituents sought an injunction preventing the special elections and restoring him to his seat on the council, arguing that state law does not give the City Council the authority to remove him.

Turner had filed a lawsuit in December arguing that the council violated his rights when it expelled him. Fifteen of his constituents joined in the suit, contending they are disenfranchised because they no longer have district representation on the council.

After denying the transfer of a liquor license to a Shrewsbury man partly because of his character, the Northboro Board of Selectmen has approved the license transfer, but with conditions, reported the Worcester Telegram. The Board's decision follows an ABCC reversal of the Board's earlier decision to deny the license.

In March, the board denied the license transfer for Celtic Tavern, a Route 9 eatery, to Christopher J. Muello, sole owner of CJ Restaurant Enterprises. Muello appealed to the Alcoholic Beverages Control Commission. Following a hearing in June, the ABCC in September sided with Muello and decided the license transfer should be approved.

The Board of Selectmen then appealed the ABCC decision in Superior Court, but also asked town counsel to seek a settlement with Mr. Muello, the Telegram reported.

The compromise accepted by both sides is a transfer of the liquor license with the following conditions: Mr. Muello cannot serve as the manager of the restaurant, and unless otherwise approved by the board, Mr. Muello cannot prepare or serve food, alcohol or other beverages at the restaurant.

The board voted 4-0 to transfer the license, with Selectman William J. Pantazis abstaining. The board plans to drop its court appeal.

Muello is on probation until January for a charge of reckless driving. He was found not guilty of drunken driving.

Federal Magistrate Judge Collings has denied the Beer Republic Brewing Company's request for an injunction against the Central City Brewing Company. Beer Republic contended that Central City's "RED RACER" mark infringed upon Plaintiff's "RACER 5" and "RED ROCKET" marks. Judge Collings found that as to Red Rocket, the Plaintiff has not shown similarity of marks, actual confusion, subjective intent, or strength of marks. As to Racer 5, Plaintiff has failed to establish that the marks of confusingly similar, which the Court called a factor of "utmost importance" in a likelihood of confusion analysis.

Judge Collings ruled that the public interest is best served by "fair competition in the marketplace."

The case is Civil Action No. 10-10118-RBC.

This article details the possible end to what has been a nasty family dispute in Worcester County. We'll see if the deal gets finalized.